WestConn professor writes about 'constitutional' concerns

News-Times, The (Danbury, CT)

Published 8:00 pm, Friday, October 26, 2007

The result, he says, is that "constitutional law" has very little to do with the Constitution.

"Within the federal government, often the federal judges do the legislating, so instead of having decision-making be chiefly local and by elections, many of the most important governmental decisions in America are made in far-away Washington and by people who were never elected and never are going to have to be elected," said Gutzman, a Bethel resident and history professor at Western Connecticut State University.

"That's why we end up with all kinds of policies that Americans never did, and never would, agree to."

Gutzman's new book, "The Politically Incorrect Guide to the Constitution" seeks to address the ways the federal government has departed from what is written in the Constitution and what was intended by the people when they ratified it.

Readers will have a chance to meet and discuss the book with Gutzman when he appears at a book signing Sunday at 3 p.m. in Barnes & Noble, 15 Backus Ave., Danbury.

Gutzman's very readable guide provides an engrossing history of the federal Constitution. He begins with the American Revolution and details how the government the original 13 states formed after separating from England was not the government we have today. It was rather a loose alliance of states with a constitution known as the Articles of Confederation.

After a decade, policy-makers wanted to form a more centralized alliance so the states would be better prepared to handle emergencies and protect themselves against foreign powers.

In the summer of 1787, representatives from 12 states met in Philadelphia, supposedly to propose amendments to the Articles. The government they proposed at the end of their deliberations would ultimately become the U.S. Constitution.

Gutzman said the states voted to ratify the Constitution with the understanding they were getting a federal system of government where the states, and especially elected legislators, would still have control over all but the few areas of law directly mentioned in the Constitution.

Over time, the power of the federal government has increased, while that of the state governments has decreased, and more and more the federal judges use the Constitution as a way to legislate based on their personal opinions and not on the Constitution, said Gutzman.

"Lawmakers and judges -- particularly the Supreme Court -- use the Constitution as a blank check."

All too often, Gutzman said, judges invent rights.

"When they find a kind of law the judges don't like, they just declare that you have a right not to have that be the law, even though really there's nothing in the Constitution that makes it a right," he said.

For Gutzman, the issue is not a liberal or conservative one, and it is not whether he agrees or disagrees with a particular Supreme Court decision. It's whether the Supreme Court should be making the decision in the first place.

Gutzman said he would like to see most of the issues now decided by the Supreme Court left to each to state to decide by elections, as the people were promised when they ratified the Constitution.

The idea of writing a book about the Constitution has been on Gutzman's mind for about two decades. In the summer of 1987, as a recent graduate of the University of Texas, he worked as intern for a Texan congressman in Washington, D.C.

There, Gutzman spent his spare time taking in the political sights and reading up on the Constitution before starting studies at the University of Texas School of Law that fall.

"I thought ... I would have a head start in terms of understanding the Constitution. What I found instead ... was that there is essentially no relationship between constitutional law (the body of judicial decisions that supposedly interpret the Constitution) and the Constitution itself," he said. "Instead of living under the Constitution that was ratified in 1787 to 1789, we live under 'constitutional law.'"

Constitutional law is based upon case law. When a judge makes a ruling on an issue, that ruling sets a precedent and is taken as law.

The problem, Gutzman says, is if a judge makes a mistake, that mistake is written into the law and is unlikely to be questioned by future generations of judges and lawyers. This is because legal education in America is now based not on study of the history of the Constitution's ratification, he says, but on past judges' often mistaken views of the Constitution.

By the time Gutzman graduated from law school, he was disillusioned with the separation between the Constitution and constitutional law. For a year he worked as a lawyer, but his dislike of the modern system led him to leave the profession and pursue a career in history.

He received an M.A. and Ph.D. in American history from the University of Virginia. During his studies, he delved deeper into the history of the Constitution, reading scores of books and articles as well as diaries and notes from the Philadelphia Convention where the Constitution was formed.

He also studied extensively the records of the ratification debates in which the Constitution's meaning was explained to the people. Through his research, Gutzman has become one of the foremost experts on the ratification of the U.S. Constitution.

Prior to "The Politically Incorrect Guide to the Constitution," Gutzman wrote "Virginia's American Revolution: From Dominion to Republic, 1776-1840." He is also the author of many articles and encyclopedia entries, as well as reviews of books, films and exhibitions for magazines.

But through the years he has never forgotten his experience at law school and always wished to write about the Constitution.

After earning his doctorate, he became a professor at John Jay College in Manhattan and moved to Bethel. After two years of making the long commute to the city, Gutzman took a position at WestConn.

Gutzman's friend, historian Thomas E. Woods Jr., had written the "Politically Incorrect Guide to American History." Gutzman told Woods that he wanted to write a history of the Constitution, and Woods put him in touch with Regnery Publishing, which handles the bestselling "Politically Incorrect Guide" series.

Gutzman began writing at a rapid rate and finished the 221-page book in four months.

"I had it all in my head," he said.

The book was published June 11, and Gutzman hopes it will cause people to question the role of federal judges.

"Americans should stop deferring to federal judges, because going to law school, which I did myself, is not any kind of instruction in morality, business ethics, the meaning of life, art, or any of these other things that federal judges are constantly undertaking to instruct us about," Gutzman said.

"Legal training should not be confused with an education," he added. "Legal training is not an education, it's trade school. It's like learning to be a carpenter."

Gutzman would like to see fewer governmental decisions made through lawsuits and more through elections.

"If you don't like the fact that kids in your local elementary school are saying 'under God' in the pledge of allegiance, the answer is not supposed to be to go to court and have a federal judge say 'stop saying the pledge of allegiance.'

"The answer should be to go to your local school board and vote out the people who are having your kids say the pledge of allegiance," he said. "In other words, have an election. That was intended to be the American way."

Gutzman will speak and sign copies of his book Oct. 28 at 3 p.m. at Barnes & Noble, 15 Backus Ave., Danbury.

"The Politically Incorrect Guide to the Constitution" is published by Regnery Publishing Inc., an Eagle Publishing company, and is available from most major book retailers.